Professional Documents
Culture Documents
MAY 24 2001
PATRICK FISHER
Clerk
v.
No. 00-3252
(D.C. No. 99-CR-40063-DES)
(D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before EBEL, KELLY and LUCERO, Circuit Judges.
John Richard Housel pleaded guilty to distributing and attempting to
distribute a total of about one and a half pounds of marijuana. (Doc. 44 (plea
agreement); Doc. 1 (indictment).) On appeal, Housel asserts that the Presentence
Investigation Report (PSR) incorrectly calculated that he was responsible for the
equivalent of more than 10,431 kilograms of marijuana. Housels counsel below
After examining appellants brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
*
initially filed several objections to the PSR but withdrew them at sentencing,
asserting that they would not affect Housels sentence. (Doc. 61 (sentencing
transcript), at 2-3.) The district court adopted the PSRs findings and application
of the guidelines, and sentenced Housel to ten years imprisonment. (PSR 84;
Doc. 56 (judgment), at 2,7.)
Because he did not raise his argument below, Housel has waived review of
all but plain error. United States v. Dwyer, 245 F.3d 1168, 1170 (10th Cir. 2001).
To reverse, we must find (1) error that is (2) plain, (3) affects the defendants
substantial rights, and (4) seriously affects the fairness, integrity or public
reputation of judicial proceedings. Johnson v. United States, 520 U.S. 461, 467
(1997) (alteration omitted). Factual disputes not raised below do not amount to
plain error. United States v. Svacina, 137 F.3d 1179, 1187 (10th Cir. 1998). We
therefore accept the factual findings of the PSR and review only whether the
PSRs application of the guidelines to these facts was plain error.
The PSR determined that Housels related conduct included attempting to
manufacture methamphetamine. (PSR 21-22, 106.) An informant had reported
that Housel was setting up a methamphetamine lab and needed to locate red
phosphorus, iodine crystals, and ephedrine tablets. (PSR 6.) Housel told an
undercover officer that he had the needed cookware and was merely waiting for
the precursor chemicals. (PSR 8.) After some negotiations, Housel purchased
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phosphorus, iodine, and pseudoephedrine from the officer. (PSR 8, 12, 14.)
Laboratory analysis indicated that from the quantity of phosphorus, Housel could
have produced 1043 grams of methamphetamine. 1 (PSR 14.) Using the table in
2D1.1 of the Sentencing Guidelines, the PSR converted the methamphetamine to
10,430 kilograms of marijuana and added it to the 1.13 kilograms of marijuana
the transactions underlying the charged offenses. (PSR 23.)
Housel argues that this related conduct should have been treated as
possession of a listed chemical, for which sentences are ordinarily calculated
under 2D1.11. Pseudoephedrine and iodine are both listed chemicals. See 21
U.S.C. 802(34), (35). The PSR, however, treated Housels conduct as
amounting to an attempt to manufacture methamphetamine, a controlled
substance, and the sentence for this offense is governed by 2D1.1. 2 We decline
to disturb the PSRs factual determination or to hold that application of 2D1.1
was plain error in this case.
The cases that Housel relies on most heavily are readily distinguishable
because they did not involve attempts to manufacture methamphetamine. In
United States v. Hoster, 988 F.2d 1374, 1382 (5th Cir. 1993), the court found that
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